England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LEEDS DISTRICT REGISTRY
(HIS HONOUR JUDGE BEHRANS, Sitting as a Judge of the High Court)

		Royal Courts of Justice Strand London WC2 Wednesday, 12th December 2001

Wednesday, 12th December 2001

1. LORD JUSTICE CHADWICK: There are two applications listed before me for permission to appeal from orders made by His Honour Judge Behrens, sitting as a Deputy Judge of the High Court in Bankruptcy in the Leeds District Registry. The applicant, Miss Joanne Robinson, has not appeared to pursue those applications in court this morning. No message has been received by the Civil Appeals Office to indicate whether she is or is not intending to appear. In those circumstances - it now being after the time appointed for this case to be heard, and the court having a number of other applications in its list - I propose to give judgment.
2. Miss Robinson, the applicant, was adjudged bankrupt as long ago as 16th June 1994 in the Sheffield County Court. I assume that she has long since obtained automatic discharge from bankruptcy; but nothing turns on that. The bankruptcy order was made on a petition presented by Mr Russell Carman on 15th April 1994. He had been given leave to present that petition forthwith by an order made on 8th April 1994 under rule 6.5 of the Insolvency Rules 1986. That order was made by District Judge Hawksworth when dismissing an application by Miss Robinson to set aside a statutory demand dated 13th December 1993 which had been served upon her by Mr Carman as trustee in bankruptcy of her father and her mother. The statutory demand was in respect of a debt in the sum of £6,863.63, being taxed costs which she had been ordered to pay in earlier proceedings brought by her parents' trustee.
3. The circumstances in which the application to set aside the statutory demand was dismissed on 8th April 1994 appear from a note of the judgment of District Judge Hawksworth. He said this:

"Today's application is based on the contention by the Applicant that money has been misappropriated by the trustee. She claims that this money belongs to her and should be applied to discharge the debt upon which the statutory demand is based. Mr Griffiths has dealt with this point by drawing our attention to the oral examination of Mr Robinson and the oral examination of Joanne Robinson and documents referred to in those examinations. These documents clearly support Mr Griffiths' affidavit and contention that the money never belonged to the Applicant personally, but was money which went through the business. I accept Mr Griffiths' argument that there is no right of set-off in connection with the two cost orders and that the Applicant has no interest (as referred to in paragraph 14 of Mr Griffiths' affidavit) other than as a partner. In addition Mr Griffiths has argued, which I accept, that at no time has there been any application in any separate proceedings whether criminal or civil against the trustee and the allegation of misappropriation has been made late in the day when the trustee took steps to enforce the costs orders."

4. I should mention that Mr Griffiths was the solicitor instructed by Mr Carman in those proceedings; and the oral examinations referred to were the oral examinations which took place in the bankruptcies of Miss Robinson's parents.
5. That order was made in the absence of the applicant. On 6th May 1994 the applicant applied to District Judge Hawksworth for leave to appeal against his order of 8th April 1994. By that time the bankruptcy petition had already been presented. Nevertheless, the applicant was given leave to appeal against so much of the order of 8th April 1994 as dismissed her application to set aside the statutory demand. But it was ordered that notice of appeal against the order of 8th April 1994 be filed on or before 13th May 1994. No notice of appeal was filed in that period.
6. Some six years later, on 24th July 2000, the applicant filed an appellant's notice seeking permission to appeal against the order of 8th April 1994. The application came before His Honour Judge Behrens on 10th October 2000. He made an order in these terms:

"IT IS ORDERED that:-

1. The Applicant's application for permission to extend time for service of a notice of appeal be refused.

2. The Applicant's appeal notice dated 24 July 2000 be dismissed.

3. The Applicant do pay the Respondent's cost ofthe application forthwith and summarilyassessed in the sum of £3,525.00 (£3,000 plus VAT)."

7. The judge's reasons are set out in a judgment of which a transcript has been provided to the court on the present application. After setting out the events leading up to the making of the bankruptcy order in 1994 and pointing out that a successful appeal against the order of 8th April 1994 dismissing the application to set aside the statutory demand would not, of itself, have had the effect of setting aside the bankruptcy order of 16th June 1994, Judge Behrens turned to the question of delay. He said this (at page 5 of the transcript of his judgment):

"She [Miss Robinson] does not in her grounds of appeal give any reason for the delay, but it is fair to her to say that there is some clue as to the reasons for the delay in her evidence in support. She says at the time of the hearing she was hospitalised for medical treatment and was unable to attend. She was consequently declared bankrupt. She suffered from depression and was ill for several years afterwards and the Official Receiver's office advised her, 'I couldn't litigate in my own name, but would have to obtain the prior consent of my trustee in bankruptcy. The claimant then successfully applied for the appointment as my trustee.'

Before me today, without any real proper notice to the trustee's advisers, Mr Robinson(sic) sought to put before me a report from Michael Heap, dated the 27th February 1996, which deals with her medical problems up until 1996. That document does not begin to assist me with any period after 1996, nor does it in fact say that it would not have been possible for her to present an appeal against the order in 1994. It does say that there would have been stress involved in attending a court hearing at the time of the report.

I have to ask myself whether, in all these circumstances, I should permit this application to be made."

8. He went on to say that he had come to the conclusion that there was no sufficient reason to extend permission to appeal and:

"I refuse the application for permission to appeal."

9. This then is a case in which a judge sitting in the High Court has refused permission to appeal from an order made in the County Court. It is a case to which section 54 of the Access to Justice Act 1999 applies. Section 54(1) provides that rules of court may provide that any right of appeal to the High Court or the Court of Appeal may be exercised only with permission. Sub-rule (4) is in these terms:

"No appeal may be made against a decision of a court under this section to give or refuse permission (but this subsection does not affect any right under rules of court to make a further application for permission to the same or another court)."

10. The rules require that the applicant obtain permission to appeal to the High Court. She sought that permission and it was refused. In those circumstances sub-rule (4) is clearly engaged.
11. In the meantime Mrs Robinson had applied, on 25th September 2000, for an order for discovery of documents. Her application was for discovery "of all relevant documents and information in the above matter." The "matter" in that context must, I think, be the applicant's bankruptcy. But the documents sought were listed more specifically in a letter dated 29th September 2000. They were: copies of all communications to and from Barclays re the subject of the account; Irwin Mitchell files in their entirety; copies of all affirmations or other relevant documentation to enable her to refute or support affirmations made by Mr Carman in relation to moneys belonging to various entities; copies of various bills of costs previously specified; specific details as to credit entries in the estate as received account; and full details as to the Robinson partnership, that is, an inspection copy of said file.
12. That application came before His Honour Judge Behrens on 5th October 2000. The judge directed himself, by reference to paragraph 17.18 in the Practice Direction Insolvency Proceedings (found in section B of Civil Procedure), that the appeal before him was limited to a review; it was not a rehearing. The practice direction is in these terms:

"1. Every appeal should be limited to a review of the decision of the lower court.

2. Unless it orders otherwise the appeal court will not receive

(a) oral evidence or

(b) evidence which was not before the lower court.

3. The appeal court will allow an appeal where the decision of the lower court was

(a) wrong or

(b) unjust

because of a serious procedural or other irregularity in the proceedings of the lower court."

13. The judge approached the matter, therefore, on the basis that he was not engaged in a rehearing of the original application to set aside the statutory demand. He said this, at page 6 of the judgment of 5th October:

"I accept that the Court does have a discretion to permit other evidence not before the lower court, because that is clear from 17.18.1, but it seems to me that in this particular case, where we have had a delay of six years, where Miss Robinson is bankrupt in any event, it would not be appropriate to permit evidence which was not before the lower court.

In those circumstances I am satisfied that there are no grounds upon which an order for disclosure can properly be made in these proceedings."

14. The test which I have to apply to the application for permission to appeal against the order of 5th October 2000 is whether there is a real prospect that the Court of Appeal would be persuaded that the judge was wrong in the approach which he took or in the conclusion which he reached. In my view there is no prospect that the Court of Appeal would interfere with the judge's order of 5th October 2000.
15. The application for permission to appeal against the subsequent order of 10th October 2000 cannot be entertained in this court for the reason which I have already given. Parliament has so enacted by section 54(4) of the Access to Justice Act 1999.
16. It follows that both applications are dismissed.
17. In the circumstances that the applicant has not attended to pursue her application I direct that a transcript of my judgment be prepared at public expense. One copy is to be sent to her, and the other copy to be placed on the file.

(Applications dismissed; no order for costs; transcript of judgment to be sent to applicant at public expense).